Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony.
Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or
a witness identified with an adverse party, interrogation may be by leading questions.
ROP R. Evid. 611(c).
Every question is leading in the sense that it directs the witness' attention to a particular event or topic. An objectionably leading
question not only solicits an answer concerning a specific topic but also suggests a desired specific answer in regard to that topic.
It is not necessarily improper for counsel to ask his witness a detailed and pointed question that may be answered "yes" or "no."
Objectionable leading occurs when the question suggests to the witness the answer that is desired, thereby diminishing the likelihood
that the answer will be the truth.
State v. Weese, 424 A.2d 705, 709 (Me. 1981).
[ 8] ding hearsay objections,ions, it is not necessarily hearsay for a witness to testify to that witnesses' own out-of-court statement.
As noted by the advisory committee's note to Federal Rule 801);
Considersiderable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination
concerning it, under oath and in the presence of the trier of fact, should be classified as hearsay. If the witness admits on the
stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem
[ 9] issue is also addressed ssed at 5 Weinstein's Federal Evidence, supra, at § 801.21[4];
If a witness, questioned about a prior statement, admits on the stand that he or she the statement and acknowledowledges that it is
true, the witness thereby adopts the prior statement as his or her testimony. This adoption bypasses the requirements of Federal
Rule 801(d)(1) and the entire hearsay problem.
[ 10]ccord; Amarin Plan Plastics, Inc. v. Maryland Cup Corp., [1991] USCA1 545; 946 F.2d 147 (1st Cir. 1991); Bell v. City of Milwaukee, [1984] USCA7 796; 746 F.2d 1205 (7th Cir. 1984); United States v. Davis,Harman v. United States, [1952] USCA4 152; 199 F.2d 34 (4th Cir. 1952) ("When the witness testified that the statement was true it became part of his testimony, and not a mere matter of
impeachment.")
[ 11] There are, of courther ther limitations on the admissibility of such statements, for example the strictures on use of prior
consistent statements,R. Evid. 801(d)(1), the requirement of relevance, ROP R. Evid. 401, and the balancing of prof probative worth
compared to prejudicial effect, ROP R. Evid. 403.
[ 12] With the above pples ines in mind, we turn to Etpison's specific objections.
I. EVIDENTARY STANDARDS
[ 13] Etpison addresses six objections in the argument portion of his brief, then directs our attention to his "statement of the
case," stating simply that all his other objections to hearsay and leading questions were weken. However, our focus wils will be
upon the objections that made it into the portion of his "argument." Undeveloped arguments are waived.
[ 14] Etpirovides four instannstances where he avers that the court erred by allowing the prosecution to introduce testimony of
witnesses of their own out-of-court statements. The following exchange took place during the testimony of Klaradyn Iyar.
[ 15]: Did you tell anybody aody about obtain or getting the license plate?
[ 16] MR. MIZI I'll object, tct, that's also calls for hearsay Your Honor.
[ 17] MS. MILES : Alrighproacproach own words.
82; 1E COURT : Her own words. [ 19] MR.MIZINOV : Her ords ards ards are hearsay, actually.
[  A ter hearsay objection overruled) I don't rememberember.
[ 21] Tr. 60:6-12 &-12 & 23.
[ 22] The ansI don't rer" doe" does not not quote an out-of-court statement and therefore cannot be hearsay, and in any event the
admission of thspons not affect the substantive right of the defendanendant and hence cannot be reversible erro error.
[ 23] The second anrd objectijections of Etpison in the Argument section of his brief concern questions asked of Uriah Stephanus,
the driver of thein which Etpison and co-defendant Marbou were brought to the scene of the crime, and afterwfterward driven away.
[ 24 : Did you ever talk to t to the detectives on July 20th?
[ 25] A : Yes.
[݄ 26] Q : And you walking to them about what you told Jason Brel?
[ 27] A : No. [ #182;&182; 28] MR. MIZINOhat's also hyso hy youor. Objection.
[ 29] THE COURT : He answeredwered no.
[ 30]0;30] MR.MIZINOV : The question still call hearnd the answer no r no is also hearsay.
[ 3160;31] Tr.127:2-11.<¶ 32] This objection i well-fell-founded. Thponsive answer, "no," is not hearsay.
[ 33] ;33] Etpison also oed cted to the following exchange as hearsay:
[҈3 : Did you talk talk to them about what you said to Jason ason Brel and Officer Tengoll on July 9th 2016?
[ 35] A :
82; 36] ;36] Q Q : Do you remember what you said to them?
[ 37] A : No, I donmember.mber.
[҈38] Q : Will your statement help you refresh your memory?
[ 39] A :A : Yes. (mumble)
[ 40] Q :head and rhat (lon (long pause) Stopped reading?
[[ 41] A no response)
[&r> [ 4 : Do you rer whu told Ofld Officer Jason Brel on July 9th?
[[ 43] A : Yes.
2;] A : I said thid there is somebody hurt.
[ 46] Q : Ths somebody hurt hurt?
[ 47] A : Yes. [҈48] Q : And: And did you tell him who did it?
[&r> [ 49] No.
[ #160;50] Tr.1228, Tr.128:1b28:1br> [; 51] The statement "I don't on't remember" is not hearsay. The statement "I said ther there
is somebody hurt" can be viewed as r notred fe truthtruth of the matter, and therefore not heat hearsay, or as a present sense impressioession,
ROP R. Evid. Rule 803(1).
[ 52] Etpison's next obje is n is to the statements of the victim, Khan Matsuoka, who testified he informed his two treating physicians
that he could not remember anything that happened to him. This statement is a classic example of ROP R. Evid. 803(4); a statement
made by a patient seeking medical diagnosis and treatment. The fact that the patient had no memory of the events is helpful information
for a physician gauging the seriousness of head injuries. The statement was properly admitted.
[ 53] Etpison also objects to the ruling of the Court when it referred to challenged testimony as "highly relevant", when the prosecution
was questioning Victor Marugg, another person who was part of Etpison's group.
[ 54] Q : Starting first Koth Kobe. What did you see Kobe holding?
[ 55] A :ick.
[ &182; 56] A :ick?
[ ;182;;57] A : Yeah.
[ 58] Q : Ant did you see Jsee Johnston holding?
[&r> [ 59] A achete.
82;�] Q : And what what did you see Anthony holding?
[&r> [ 61] A stick.
[ &182; 62] Did you have a w?
[ 63] A : Yes.
[ 64] Q ] Q : And how did you come into possession of the weapon? Who gave you t
2; 65] A : I found it.
[ 66] Q 6] Q : What did you find?
[ 67] A : A pipr> [ &182;] Q ipe. Was there a re a conversation at the parking of the IA building amongst yourselves abos
about what you wanted to do with these ws? [;#182; 70] Q : : And who wakitalking during that conversation?
[ 71] A : All o
[¶ 72] Q : And was the topictopic of the conversation?
[ 73] MR. MI : Calls forsay Ysay Yonor.
[ #182; 74] THE COURT : Oved. I'll I'll allow it.
[ 75]0;75] Q : What was the topic of the conversatbr> [ 76] A : About.....
[ 77] ;77] Q : I can't hear you.
[ 78] A : About ing.
[&r> [&##160;79] Q : And who did you guys want to fight?
[&r> [ 80] A :beched people-- Ng-- Ngerbeched boys.
[  Q :beched boys. Was Was there an agreement that that was what what you all were going to do is fight the Ngerbeched boys?
[ &82] A : Yes.
[ #182; 83] Q : Was that an agreement made between you and Kobe, Johnston and Anthony?
[ 8. MIZINOV : Calls for hear hearsay Your Honor.
[ 85] OURT : Overruled. HighlHighly relevant, I will allow ir> [& 86] Y : Yes.
[ #182; 87]204:8-27, Tr. 205:1-22.<-22.
[ 88] This testimonyin fact "act "higelevabut more to the pthe point of the objection it was an admission by a party opponent.
ROP R.OP R. Evid. 801(d)(2)(A), and therefore admissi
[ 89] Another evidencing to w to which Etpi Etpison takes exception concerns the questioning of Officer Harris Ubedei, regarding
his contact with Victor Marugg.
[ 90] Q he ever say to youo you on Tuesday that.....
[ 91] MRINOV : Calls for hear hearsay Your Honor.
[ 92] THE C: Huh, highly rele relevant, I will hear it. Go ahead iles. [ 93]0;93] MS. MILES : Did he ever say to you that he felt
threatened on Tuesdauesday?
[ 94] A : No. [ 96] A : No. [ 98] ANo.
.
[ R 99] Tr:9-19.
[;] Th6] These questionstions were leading, but the objection was was limited to the response as hearsay. The answer "no" was
not hearsay, no o-court statement ment was repeated.
III. CUMULATIVE ERROR
[ 101] Etpisgues that the Trie Trial Division’s admission of hearsay testimony, along with the overruling “numerous [objections]
regarding the Republic’s of examining its witnesses,” amounted to cumulative eive error when viewed together. Courts
recognize cumulative error when “individual errors, insufficient in themselves to necessitate a new trial, may in the aggregate
have a more debilitating effect”. U.S. v. Sepulveda, [1993] USCA1 649; 15 F.3d 1161, 1195-96 (1st Cir. 1993). In order to prove a finding of cumulative error, Etpison must first prove that there was error on the part
of the Trial Division, and that those errors deprived Etpison of his right to a fair trial.
[ 102] Etpison invites us to return to his "statement of the case," to consider other objections made at trial but not specifically
addressed in the "argument" portion of the brief. We decline to do so, except in summary The vast majority of DefenDefendant’s
“method of examination” objections were for leading questions asked to witnesses who were friends of the Defendants and
who accompanied them to the scene of the attack that evening. These witnesses did not want to be testifying in court and the Trial
Court was well within its discretion to allow leading questions to be asked of them. ROP R. Evid. Rule 611(c).
[ 103] Regarding hher hearsayarsay objections, either the objected-to statements were not hearsay because they were only offered
to prove that the statement itself was made, not the truth of the matter assertedadmissible because of an exan exception found in
ROP R. Evid. 803, or do not affect substantive rights.
IV. SUFFICIENCY OF THE EVIDENCE
[ 104] Lastlpison appeals hiss his conviction based on insufficiency of the evidence. For such an appeal, we consider “whether,
viewing the evidence in the light mosorable to the prosecution and giving due deference to the tthe trial judge’s opportunity
to hear the witnesses and observe their demeanor, any reasonable trier of fact could have found that the essential elements of the
crime were established beyond a reasonable doubt.” Ngirarorou v. ROP, 8 ROP Intrm. 136, 139 (2000).
[ 1tpison argues that the Trie Trial Division could not have found beyond a reasonable doubt that it was he who specifically caused
the injuries to the victim, and he was never explicitly charged as an accomplice.
[&#> [ 106] The pertinent provisions of the Palau National Code provide otherwise. A person can be found to be liable for the actions
of other persons if that individual is “legally accoun” for the actions of the other participants, 17 PNC &PNC §
222(a). Legal accountability exists when one is “an accomplice of such other person in the commission of the offense.”
17 PNC § 222(b)(3). An accomplice is defined as one who “aids or agrees or attempts to aid the other person in the planning
or committing [the offense].” 17 PNC § 223(a)(2).
[ 107 status of being an acco accomplice is not an independent crime. It is a theory of liability, and to be convicted as a principal
or accomplice, an individual need not be charged as an accomplice. Therefore, the prosecution does not need to show which accomplice
struck the blow that did the greatest damage. Engichy v. FSM, [1984] FMSC 13; 1 FSM Intrm. 532 (App. 1984) and cases cited therein.
[ 108] It is establisase law law in a variety of jurisdictions in the United States, including Hawai‘i[1] that a defendant charged as a principal can be convicted aither a principle or an accn accomplice. For example, in State v. Fukusaku, the Supreme Court of Hawai‘i held that “one who is charged as a principal can be convicted as an accomplice without
accomplice allegations being made in the indictment.” 85 Haw. 462, 486, 946 P.2d 32, 56 (1997) (citation and internal quotation marks omitted). See also, State v. Apao, 59 Haw. 625, 586 P.2d 250 (1978) (rejecting appellant’s argument that because the indictment in this case did not notify him that he was being charged
as a principal or accomplice he was unable to prepare a proper defense.)
[ 109] With accompliability pity principles in mind, it was reasonable for the Trial Court to find that Marbou, Tellei, and Appellant
Etpison acted together, with the end result being that they are all criminally responsible for victim’s injuries, as they were
part of the same group of men who went to the Bayside Bar with weapons for the purpose of physically attacking “Ngerbeched
boys.”
CONCLUSION
[ 110] For tasons stated here herein, we AFFIRM Defendant's conviction.
SO ORDERED, this 10th day of October, 2017.
[1] There is no s no meaningful difference between the sections which impose liability for the actions of another and define accomplice
liability in ROP Palau’s Criminal Code, 17 ROP §§ 222 & 223, and the corresponding sections in Hawaii’s
criminal code, Hawai’i Rev. Stat. §§ 702-221 & 702-222.
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